Mike Pence Had a Liberal Moment. Yes, It's True

Ever since Mike Pence was offered the job as Donald Trump's running mate earlier this month, he's been described as a solid conservative. That moniker is undoubtedly true, given the Indiana governor's steadfast support for tax cuts, unrelenting opposition to legal abortion and dedication to smaller government—including opposing George W. Bush on the expansion of Medicare and the Wall Street bailout. But labeling Pence as such overlooks an interesting and, perhaps, revealing moment in his career: when he allied himself with media organizations to champion the rights of reporters to protect their confidential sources.

Pence was an advocate in Congress—the champion—of what's called a shield law. The Supreme Court has ruled that reporters and their confidential sources do not have legally protected relationships like priests and parishioners, husbands and wives, or doctors and patients. Reporters and the media companies that pay their salaries have long fought in court to establish such a right, the thinking being that if reporters must divulge their sources when subpoenaed, whistleblowers and other persons who speak to the press under the cloak of anonymity will be too scared to speak up, and the public will suffer.

It's a strong argument. Confidential sources have been key to some of the most important stories of the past generation, including Watergate, where the famed "Deep Throat" led Bob Woodward and Carl Bernstein to the criminal goings-on in Richard Nixon's White House. More recently, the National Security Agency's warrantless surveillance that allowed the secretive government organization to collect so-called metadata on millions of Americans was exposed by two New York Times reporters using anonymous sources. One of them, James Risen, was nearly imprisoned during the attempt to get him to testify about his sources; he was spared only when the Justice Department backed off.

The legal landscape for protecting reporters and their sources is somewhat complicated. While 49 states and the District of Columbia have some kind of protection for sources and reporters, there is no such protection under federal law. As a member of the House of Representatives, Pence went out of his way to sponsor and advocate for legislation that would give the press some protection in federal cases.

(I should say that both Pence and I testified before the Senate Judiciary Committee on this question in 2005. I had been in contempt of court and facing imprisonment for not divulging sources in the case of a CIA agent who was outed by officials in the George. W. Bush administration. I did not leak the name, but I did write a piece about how the Bush administration had targeted the CIA agent, Valerie Plame, and her husband, former Ambassador Joe Wilson, who had criticized the administration's statements that Saddam Hussein was seeking uranium in Africa to build a nuclear device. The original story, which I co-wrote, is here. My accounts of my case can be found here and here. It's fair to say I admired what Pence did.)

Pence not only introduced a shield bill but fought for it for years while in Congress. In a 2008 editorial in The Washington Times, Pence declared, "Today the free and independent press in America is under fire." His Free Flow of Information Act would have given reporters significant but not absolute protections under federal law. The bill has holes for national security cases and might not have protected Risen or me, but the measure was generally welcomed by media and press advocacy organizations that sought its passage, even as they continued to argue that the Constitution protects source confidentiality. Alas, Pence's advocacy was for naught. The Bush administration opposed a shield law and so did the Obama administration (although as a senator Barack Obama favored such a law).

The shield law's prospects are unlikely to be much better under a Clinton administration, and certainly not under Donald Trump. In fact, the reality show host and developer has vowed to change laws to make it easier to sue reporters. This follows a long history of protracted litigation against members of the press, not to mention comments he's made on the campaign trail about reporters being "scum." By contrast, Pence said in 2011: "Without the free flow of information from sources to reporters, the public is ill-equipped to make informed decisions."

Why did Pence take up the cause? Part of it is his belief in individual liberty, he said. He also was a radio talk show host for many years, so as a member of the press he's more attuned to their needs than most. For whatever reason, it puts Pence on the side of the press—unlike his new boss, Trump, or law enforcement officials like FBI Director James Comey, who as deputy attorney general opposed the shield bill and submitted testimony against it the day Pence and I advocated for its passage. President Obama has even used the Espionage Act, a World War I–era statute, to try to get reporters to divulge their sources, which is why the Times's Risen calls his administration the "greatest enemy of press freedom in a generation."

As governor, Pence wasn't exactly beloved by the press. The state Capitol press corps was outraged by what was widely seen as Pence's attempt to create a state-run news service, something Pence denied. Still, in an era when it seems politicians can't wait to gang up on the press, it's interesting that one of the Fourth Estate's great defenders is a conservative Republican who was chosen to be Trump's running mate.